As Public Testimony Floods In, Permitting Bill’s Future Uncertain

With less than a month of session to go, the Parnell administration is in a similar spot with HB77 as it was last year: Opposition came out strong and fast, key senators are on the fence, and movement on the controversial permitting bill has stalled.

You know a bill is in a tricky spot when even the lead advocate for compromise jokes about the legislation being cursed. Sen. Peter Micciche, a Republican from Soldotna, likened HB77 to a thirteenth floor on Wednesday.

“Perhaps in the future, we’ll retire the number HB77 and just skip from 76 to 78. I think in some ways the number is somewhat damned,” Micciche told reporters.

Gov. Sean Parnell’s bill was pitched as a way to make the permitting process more efficient, and it initially raced through the Legislature last spring. But tribal groups, fishing organizations, and environmental outfits came out hard against the bill, arguing it gave too much power to the Natural Resources commissioner and limited public involvement in the permitting process.

So, the legislation was effectively put in time-out. It got locked up in a procedural committee, while public hearings were held and a compromise was brokered. Administration officials and Micciche – whose vote is needed for the bill to pass – set out to forge a new draft without some of the more contentious elements. And they hoped public sentiment might cool down in the meantime.

That didn’t happen.

“I didn’t expect cheers. I didn’t expect people to be thrilled with the outcome of the bill. I mean the bill is the bill,” says Micciche. “But what I did expect is a fair shake.”

Since the new version of the bill was released two weeks ago, the Legislature has been inundated with phone calls, e-mails, letters, and petitions on HB77 from both sides. When all that testimony is printed out, you get a stack of papers six inches high – two inches in favor, and four against.

With the bill being such a charged issue and with a few weeks left of session, the bill has stopped moving. Public testimony was extended, and hearings for amendments keep getting delayed.

Some opponents think it’s past the point of compromise. Sen. Hollis French, an Anchorage Democrat who serves on the Resources Committee, recently announced he would not be offering any amendments to the bill. He thinks it’s “too flawed to fix.”

“I would like a great big stake driven into the heart of this bill,” French told reporters.

Rick Halford, a former lawmaker who has come out as a prominent critic of the bill, says he too still has problems with the bill. He thinks some of the changes to the bill were “more in drafting style than substance.” He doesn’t see how the bill can be rewritten in the next month to satisfy his concerns.

“When one of the topics of the bill is how to limit public participation at the administrative level, that makes it a pretty difficult bill to sell,” says Halford.

And some of the interest groups on the fence see the bill facing an uphill battle.

Jerry McCune is the president of United Fishermen of Alaska, a seafood industry group that has concerns with the bill. He says UFA is committed to working with the Legislature and the administration on the bill, but they’re not there yet.

“In the short amount of time we have left, to digest any other particular changes and get it all figured out, I would say our membership probably wouldn’t support it at this time,” says McCune.

McCune says part of the problem is that the bill is so complex, people have not had time to figure out if any of the tweaks to the bill are meaningful.

Where the old version removed the right of individuals and groups to apply for water reservations to protect fish habitat, the new version does not exclude them but it does allow others to get “temporary use” access to a given stream until an application is approved. While 35 such applications are currently pending, the Department of Natural Resources has never granted a water reservation to an independent entity.

The new version also sets up a mechanism whereby the Natural Resources commissioner can issue general permits for activities that would not cause “significant or irreparable harm to state land.” Those permits would allow users who want to engage in that activity to do so without submitting their own paperwork. While the previous version of the bill did not require public notice of those permits, the new version has a provision for a 30-day comment period.

Much of the administrative language that existed in the previous bill exists in the current one.

“People are just so mixed up and confused now and trying to keep up with all this that they could probably write it on one page, and some people are not going to support it at this point.”

Even the administration officials pushing for the permitting overhaul see the massive scope as an obstacle at this point. Ed Fogels is a deputy commissioner with the Department of Natural Resources, and he was involved in drafting the bill.

“One of the issues that’s going on here is this bill is very big and attempts to fix a lot of small problems within DNR statutes,” says Fogels. “So when you look at the bill in its entirety, it gets confusing. You can’t really understand it without sitting down with the bill, with the statute book, and reading through it.”

Fogels thinks the new bill is responsive to the criticism DNR heard last year.

“I do think the changes that were made were good, solid changes that address the majority of all the issues that we heard,” says Fogels.

For his part, Micciche says some of the controversy may have been avoided if a different approach had been taken with the bill.

“Pull it back, change the number, break it up, deal with one issue at a time. It’s not where we are today, but I think people have become so focused on the number, and they’ve been so stirred up by people that I don’t believe are looking at the issue rationally that’s it’s difficult for them to see the bill for what it is.”

Micciche wants to see a few more changes to the bill before he’ll vote for it. But he thinks a lot of progress has been made, and he says he’s been getting as many e-mails in favor of the bill as he is getting against it. He’s also surprised by some of public outrage over the new version. Micciche says he’s been reaching out to some of the opponents who have sent him letters. He remembers one woman from Talkeetna.

“She sent me one of those, ‘Nothing has changed; I still hate you’ e-mails,” says Micciche. “We talked through the bill and found a lot of common ground. And by the time we were through, and she saw the changes, and we talked about it, explained how code works and things that had been there since statehood, and things that were essentially codifying practices that had been done in the past. We had a pretty good conversation.”

Micciche wishes he could have conversations like that with every opponent in the state. But there’s no way he can personally call thousands of people and walk them through the legislation. And with just a month left of session, a looming deadline only adds to an impossible task.

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